When Judges took to the Press: Looming Public Policy Questions

In the history of the Indian judiciary, there have been several landmark moments. Some have been marked by sheer judicial brilliance, while others have blotted its history, often coming back to haunt the institution. The events of 12 January 2018 are likely to go down as one such landmark moment, although time will tell what the impact of this would be.

On Friday, 12 January, four senior judges of the Supreme Court – Justices J. Chelameswar, Ranjan Gogoi, M. B. Lokur, and Kurian Joseph – called a press conference to express their discontent with some of the internal functioning of the highest judiciary. Listing and allocating cases to benches of preference was one of the issues mentioned, bringing into question the role of the chief justice who is responsible for the same. The judges sent a letter to Chief Justice Dipak Misra highlighting this issue as well as other concerns regarding the manner of deciding certain matters of grave importance.

Judges holding a press conference, especially to discuss the functioning of the judiciary, is not a common phenomenon. This is a break from convention, an unsaid rule that judges only speak through their judgments. This is not the first time Justice Chelameswar has spoken out against the internal workings of the Supreme Court. In the time since the National Judicial Appointments Commission was set aside, and the collegium system sought to be made more transparent, Justice Chelameswar has raised his voice whenever he believed there was a problem. Internal functioning of the judiciary has seldom been public, although in recent times, collegium resolutions have been made public (although Justices Lokur and Joseph were against this).

Public Policy Concerns

The judiciary of the present is not only an institution that implements policies. It has taken on a role of also laying down norms and laws. A few recent examples can be the Court’s judgment on right to privacy, police reforms, and recognition of rights of transgenders. Senior judges speaking directly to the press and in essence, to the country, should be a signal about where the judiciary is headed. When matters of public importance are brought to the Supreme Court for decision making, what role does the chief justice have? It is often said that India does not have one Supreme Court, it has thirty-one Supreme Courts owing to the number of judges and the benches they sit on to decide cases. In saying that the chief justice is first among equals, the four judges have brought the issue of the role of the chief justice back to the forefront.

This should, ideally, bring more focus on the functioning of the Chief Justice of India, in his/her administrative capacity. While the Supreme Court Rules mention the role of the Chief Justice as the one who makes the decisions regarding allocation of cases to particular benches, the rest is left to his/her discretion. There needs to be a standard set of rules of procedure for the role of chief justices of the high courts and the Supreme Court. As of now, owing to the nature of the tenure of the chief justice (seniormost judge becomes the chief justice), there is no such standardised manner of functioning, other than those developed by unsaid norms of practice.

Concerns regarding transparency and accountability of the judiciary are also ones that still need to be addressed. While some judges of the Supreme Court themselves agreed that court proceedings ought to have audio and video recording, there has been no such decision to enable implementation of the same.

Last, and certainly not the least, this break from tradition along with other recent events like the case of a seven-judge bench hearing a contempt case against Justice C.K. Karnan, the question of the Memorandum of Procedure of judicial appointments, and the general lack of both transparency and inclusivity in the judiciary, must force the institution to introspect. Finally, as one of the pillars of democracy, the judiciary, with the Supreme Court in the lead, ought to find its moral compass arising out of the Constitution and as an institution of justice.

(Shreeja Sen is is a 2017-19 participant of the Master Public Policy programme at National Law School of India University. She can be reached at shreejasen@nls.ac.in)